Trading Standards Enforcement Policy

Adoption of the Enforcement Concordat

The Cabinet meeting, 11th July 2002 agreed that the adoption of the Enforcement Concordat, and all regulatory services maintain prosecution policies that include the principles of good enforcement contained in the Concordat.

Standards

In consultation with business and other relevant interested parties, including technical experts where appropriate, we will draw up clear standards setting out the level of service and performance the public and business people can expect to receive. We will publish these standards and our annual performance against them. The standards will be made available to businesses, the public and others who are regulated.

Openness

We will provide information and advice in plain language on the rules that we apply and will disseminate this as widely as possible. We will be open about how we set about our work, including any charges that we set, consulting business, voluntary organisations, charities and consumers where appropriate. We will discuss general issues, specific compliance failures or problems with business based in Wirral.

Helpfulness

We believe that prevention is better than cure and that our role therefore involves actively working with business, especially small and medium sized businesses, to advise on and assist with compliance. We will provide a courteous and efficient service and our staff will identify themselves by name. We will provide a contact point and telephone number for further dealings with us and we will encourage business to seek advice/information from us. Applications for licenses, equipment testing, etc. will be dealt with efficiently and promptly. We will ensure that wherever practicable, our enforcement services are effectively co-ordinated to minimise unnecessary overlaps and time delays.

Complaints about service

We will provide well publicised, effective and timely complaints procedures easily accessible to business, the public, and consumer groups. In cases where disputes cannot be resolved, any right of complaint or appeal will be explained, with details of the process and the likely time-scales involved.

Proportionality

We will minimise the costs of compliance for business by ensuring that any action we require is proportionate to the risks. We will take account of the circumstances of the case and the attitude of the trader when considering action, taking into account our prosecution criteria included in this document.

We will take particular care to work with small businesses and voluntary and community organisations so that they can meet their legal obligations without unnecessary expense where practicable.

Enforcement decisions affecting individuals and companies will be made with regard to their rights as governed by the European Convention on Human Rights and will be made in proportion to the risks to them compared with the risks to society at large using the concept of proportionality.

Consistency

We will carry out our duties in a fair, equitable and consistent manner. While officers are expected to exercise judgement in individual cases, we will have arrangements in place to promote consistency, including effective arrangements for liaison with other authorities and enforcement bodies through schemes such as those operated by the Local Authorities Co-ordinating Body for Regulatory Services (LACORS) and the Local Authority National Type Approval Confederation (LANTAC), if appropriate to Trading Standards.

Principles of Good Enforcement: Procedures

Advice from an officer will be put clearly and simply and will be confirmed in writing, on request, explaining why any changes in business practices or procedures are necessary and over what time-scale, and making sure that legal requirements are clearly distinguished from best practice advice. If the recipient disagrees with the advice, the option to ask for a review by a senior officer will be given.

Before formal enforcement action is taken, officers will provide an opportunity to discuss the circumstances of the case. Then, if possible, resolve points of difference. This will be unless immediate action is required (for example, in the interests of health and safety or environmental protection or to prevent evidence being destroyed) and bearing in mind the over riding principles contained in the Police and Criminal Evidence Act and other legislation governing the conduct of investigations.

Where immediate action is considered necessary, an explanation of why such action was required will be given at the time and confirmed in writing in most cases within 5 working days and, in all cases, within 10 working days, subject to the provisions of the Police and Criminal Evidence Act.

Where there are rights of appeal against formal action, advice on the appeal mechanism will be clearly set out in writing at the time the action is taken (whenever possible this advice will be issued with the enforcement notice).

Enforcement Action

Minor infringements can be dealt with by means of an informal warning by the officer. More serious matters will be dealt with as follows:

Written Warning

This will consist of a letter from a senior officer outlining the circumstances of the offence explaining the alleged contravention, possible measures to be taken to prevent re-occurrences and the potential consequence of further breaches.

Formal Cautions

Under certain circumstances, a formal caution may be an appropriate alternative to prosecution. This option will be considered before prosecution. A formal caution is a serious matter. It is recorded on the Central Register of Convictions and may be used to influence any decision whether or not to institute proceedings if the person should offend again. It may be referred to in any subsequent court proceedings. It will not be referred to in respect of any conviction recorded more than 3 years earlier.

Formal cautions serve the following purposes:-

• to deal quickly and simply with less serious offenders;
• to avoid unnecessary appearance in criminal courts;
• to reduce the chance of offenders re-offending.

Before issuing a caution the following conditions must be satisfied:-

• there must be sufficient evidence to give a realistic prospect of conviction;
• the suspected offender must admit the offence by signing a declaration
• the suspected offender must understand the significance of a formal caution and give an informed consent to the caution.

Prosecution

The Council will use discretion in deciding whether to initiate a prosecution. Where the circumstances justify it, prosecution without prior warning may take place.

The Council will consider prosecution when:-

• it is appropriate in the circumstances, as a way to draw attention to the need for compliance with the law, especially where there would be a normal expectation of a prosecution, or where, through the conviction of offenders, others may be deterred from offending; or
• there is the potential for considerable harm arising from the breach; or
• the gravity of the offence, taken together with the general record and approach of the offender justifies it.

The decision to prosecute will always take account of the criteria set down in the Code for Crown Prosecutors and Attorney General's Guidelines and the Code of Practice on Legal Matters made under section 40 of the Food Safety Act 1990.

Before deciding to prosecute there must be sufficient evidence for a realistic prospect of conviction taking account of any defence that may be available, and it must be in the public interest.

The following public interest criteria will normally be taken into account when deciding on the relevance of legal proceedings, although this list is not exhaustive:-

• The prevalence of the type of offence.
• The need for a suitable deterrent.
• The risk of danger or injury to the public.
• The failure to comply with a statutory notice or respond to advice about legal requirements.
• The disregard of legal requirements for financial reward.
• Significant financial loss, potential or actual, to a third party.
• A history of similar offences.
• Persistent breaches of legislation.
• Where fraud, gross negligence or guilty knowledge is a factor.
• Minor breaches of a number of statutes

Where possible, an offender will be told as soon as sufficient evidence is obtained that a prosecution may follow.

All prosecutions will be brought without unnecessary delay.

Shared enforcement

The Trading Standards Division recognises the need to work in partnership with colleagues and other agencies where there is a shared enforcement role.

The Trading Standards Division notes the following formal guidelines.

• The formal memorandum of understanding signed with the Office of Fair Trading (OFT) in 1975 concerning shared enforcement powers under the Consumer Credit Act 1974.
• The formal memorandum of understanding signed by LACORS, ACPO, TSI, HM C&E and trade mark holders dealing with intelligence sharing and joint enforcement activity concerning breaches of legislation relating to intellectual property rights.
• Framework agreement between the Director General of Fair Trading, LACORS and other qualifying bodies concerning the enforcement of the Unfair Terms in Consumer Contracts Regulations 1999. The principals of autonomy, lead agency, co-operation, confidentiality and selectivity of action, which underpin the framework agreement, will inform subsequent joint activity under other injunctive proceedings.
• The cross local authority border authorisation of officers to enforce the provisions of the Video Recordings Act.
• Other shared enforcement roles will need to ensure consistent and efficient joint working on small scale issues (e.g. joint visits with colleagues in Environmental Health) to large scale issues involving a multi-agency approach, which may require a formal protocol detailing:
  • The lead investigative agency
  • Contact point for all complaints, concerns and intelligence
  • Role of each party in the conduct of the investigation
  • Exhibits officer and evidence storage facilities
  • Legal issues to be addressed
  • Prosecuting agency
  • Procedural Guidance for investigating officers
  • Financial and sampling arrangements

These procedures will be applicable to enhanced liaison arrangements through LACORS.

The particular interests of consumers

The Trading Standards Division recognises the need to make provision for the particular interests of consumers (including business owners, employees and the public) within the authority's area by, for example:

• Having available translation services for those not having English as a first language.
• Visiting traders and consumers out of normal office hours.
• Providing home visits to those with disabilities.
• Preparing, where appropriate, victim personal statements and arranging support through the Witness Service.